Graham v. Mohawk Council of Akwesasne, 2009 HRTO 986

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Joyce Graham

Applicant

-and-

Mohawk Council of Akwesasne and Helen McKenzie

Respondents

-and-

Her Majesty the Queen in Right of Ontario as represented by the Ministry of the Attorney-General

Intervener

Interim DECISION

Adjudicator: Jay Sengupta Date: July 7, 2009 Citation: 2009 HRTO 986 Indexed as: Graham v. Mohawk Council of Akwesasne

1On December 5, 2008, Joyce Graham filed an Application with the Tribunal under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”). She claims that she suffered discrimination in the area of employment on the basis of family status.

2The respondents filed a Notice of Constitutional Question as a part of a Request for Order During Proceedings and seek an order dismissing this Application as being outside the jurisdiction of the Tribunal. The respondents take the position that they are regulated by federal legislation and not provincial. If they are right, then it is the Canadian Human Rights Commission and not the Tribunal to which the applicant must direct her complaint of discrimination, and it is the Canadian Human Rights Act, R.S.C. 1985, c. H-6, which governs her situation, and not the Ontario Code.

3The Attorney General of Ontario has been added as an intervener in these proceedings and has filed a response to the respondents’ Request for Order and has filed its own Request for Order seeking that the decision on the respondent’s Request for dismissal be deferred until the Supreme Court of Canada renders its decision in the appeals of two cases scheduled to be heard by the Court on December 8, 2009. The Attorney General of Ontario also indicates that it takes the position that the matter of jurisdiction should not be dealt with in writing. Finally, the Attorney General has indicated that the respondents have consented to a deferral of these proceedings and that the applicant intends to oppose the request.

4The respondents have sent a letter disputing the Attorney General’s contention that the Request to dismiss cannot be addressed in writing. The Tribunal has received no communication from the applicant concerning either Request for Order.

5As the Tribunal has not heard from the applicant since the filing of her Application, and she has not responded as required to the Requests for Orders filed by the other parties, the Tribunal will ask her to confirm that she still wishes to proceed with this Application. The Tribunal therefore directs the applicant to clarify, in writing, by July 17, 2009, whether it is her intention to proceed with this Application. If she does not respond by that time the Tribunal may dismiss the Application as abandoned.

6Section 45 of the Code confirms the Tribunal’s authority to defer consideration of an application. Under Rule 14.1 of the Tribunal’s Rules of Procedure, the Tribunal may defer consideration of an application, on such terms as it may determine, on its own initiative or at the request of any party. Typically, the Tribunal exercises its discretion to defer when the parties are engaged in concurrent legal proceedings in another forum.

7Although the Attorney General has characterized its request as one of deferral, it appears that what is being requested is actually an indefinite adjournment of this Application pending the release of the decision of the Supreme Court of Canada. The Tribunal will not grant the request to adjourn the Application at this stage.

8However, on the basis of the material before it, the Tribunal agrees that the issue of whether the Tribunal has jurisdiction over this Application is best dealt with in a hearing, rather than through written submissions.

9If the Tribunal receives notification from the applicant that she intends to proceed with the Application, the Tribunal will schedule a hearing to receive the evidence and submissions of the parties on the issue of the Tribunal’s jurisdiction to hear this Application. In those circumstances the parties are directed to exchange all arguably relevant materials on the issue of the Tribunal’s jurisdiction by August 28, 2009. Any witness statements, documents and caselaw the parties intend to rely on must be served on the parties and filed with the Tribunal 21 days before the date set for hearing.

10Although the Tribunal has denied the request to adjourn the Application, the Attorney General may make submissions at the hearing on whether the Tribunal should issue a final decision on the issue of jurisdiction before the Supreme Court issues its ruling on the cases it refers to.

11The Tribunal may make further directions on this Application.

12I am not seized of this matter.